Justice Scalia and First Things

Scarberry, Mark Mark.Scarberry at pepperdine.edu
Thu Mar 9 10:32:08 PST 2006

Doug probably knows more about Hart than I do, but, if I remember correctly,
Hart's view is that judges in effect legislate when they decide cases in
which neither statutes nor clear precedents require a particular result.
When judges legislate in that way, they decide cases using all tools
available for making the best decision, including morality broadly speaking.
The rule of recognition then comes into play. It says that because a duly
constituted court decided the case in the way that it did, that decision is
a kind of "law" for later cases under the principles of stare decisis that
are part of our rule of recognition of what constitutes the law.

The approach that says you look for the best fit in light of the moral
principles inherent in other laws is more associated with Ronald Dworkin, in
my view. Dworkin says that there is only one right way to decide such cases,
and his hypothetical super-judge, Hercules, could find it. Thus judges lack
the discretion that Hart said they had.

But perhaps we are getting too far afield from constitutional law.

Mark S. Scarberry
Pepperdine University School of Law

-----Original Message-----
From: Douglas Edlin [mailto:edlind at dickinson.edu] 
Sent: Thursday, March 09, 2006 10:15 AM
To: Scarberry, Mark
Cc: conlawprof at lists.ucla.edu
Subject: Re: Justice Scalia and First Things

Just a quick clarification of a small but important point in Mark's
excellent post.  As an inclusive positivist, Hart would not say that
morality broadly speaking can be used to determine what the law is. 
Only the moral principles incorporated by reference in a legal source (for
example, the U.S. Constitution) may be used to determine what the law is
(according to the rule of recognition).

I think many lawyers become (or believe they become) positivists in law
school.  They are taught that laws can only be found in certain
authoritative sources and that these sources are uniquely important to legal
reasoning.  Some of them are also taught, or hear, that the sources thesis
is a defining characteristic of legal positivism, so they consider
themselves legal positivists.  This still may not resolve the question of
whether Justice Scalia is a legal positivist or a natural lawyer, however,
because John Finnis believes that natural lawyers can accept the unique
importance of authoritative sources for legal reasoning without necessarily
adopting positivism as a legal philosophy.


Scarberry, Mark wrote:

> As John Finnis points out in Natural Law and Natural Rights (OUP 
> 1980), natural law adherents recognize that unjust laws are in the 
> broad sense laws. I'm not sure Finnis makes the point explicitly, but 
> it is clear that he does not think that something is law just because 
> sound morality would require that the state adopt it as law. Rather, a 
> law that violates moral principles is not a law in the focal meaning 
> of that term, and such an unjust law is not a central case of the 
> concept of law. A state should adopt as law those rules that are for 
> the common good and are thus moral.
> Positivists of course criticize the law if they see it as being 
> immoral (see HLA Hart, The Concept of Law (OUP 1961)), but they see 
> the concept of law as not including any necessary connection to 
> morality. Natural law adherents criticize immoral laws (and they call 
> them "laws") because they do not perform the function that laws are 
> designed to perform, and thus they are defective. For natural law 
> adherents it is the concept of law that has a necessary connection to 
> morality; not every instance of law must have that connection in order 
> to fall within the broad category of law. As to the morally binding 
> status of positive law, I doubt there is much difference between an 
> HLA Hart and a John Finnis, except that one of them sees the analysis 
> as going forward outside the category of "law" and the other sees it 
> as going forward within the category of "law." Both of course agree 
> with Bentham (or was it Austin?) that a person who violates an immoral law
is in fact likely to be punished.
> Both would agree that at some point the judge must, as a matter of 
> morality, refuse to enforce immoral laws--and I think they would agree 
> that such a judge may have to resign rather than just ignore the 
> immoral law, because it is law, and because the judge probably has 
> taken an oath to uphold it.
> When a judge is determining what the law is, not what it should be, 
> there is no necessary connection between natural law/positivist 
> divisions and the use of morality. HLA Hart, for example, thinks that 
> judges legislate in the gaps--that they have discretion in many cases 
> to reach a decision that is the right decision. Thus he, as a 
> positivist, is committed to use of morality (broadly speaking) to 
> determine what the law is. But Justice Scalia does not see our system 
> as giving him such discretion to implement his moral or policy 
> preferences. That does not make him a positivist. He can still say 
> that the rule of Roe v. Wade is defective morally and thus not in the 
> full focal sense of the term "law," even as he recognizes that in our 
> system lower courts are bound by it, because it is law. He could even 
> say that a morally better legal system would give wise judges the 
> power to invalidate immoral laws, but nevertheless conclude that ours 
> does not. (Of course he does not seem to think judges have better 
> moral sense that legislators, and thus he would be unlikely to think 
> that judges should have that discretion.)
> I hope that makes sense. Each time I look at these issues, I come away 
> thinking that the difference between positivism and natural law is 
> much less important than generally thought. The key, I think (though 
> others may understand these matters much more fully) is that natural 
> law adherents, like Finnis, see morality or the common good as a part 
> of the design function of law, and thus a law that does not further 
> the common good is defective, even though it is law. Law is best 
> analyzed, not in a value-free way, but in light of the values that the 
> institution of law is designed to serve. In the first chapter of 
> Natural Law and Natural Rights, Finnis explains all this, and he 
> connects it with Max Weber's insights. I don't know enough about Weber 
> to know whether Finnis is interpreting him correctly, but Finnis makes 
> a strong argument that to try to analyze law without first figuring 
> out what it is for is to miss the point badly.
> Mark S. Scarberry
> Pepperdine University School of Law
> ----------------------------------------------------------------------
> --
> *From:* conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Sanford 
> Levinson
> *Sent:* Thursday, March 09, 2006 8:54 AM
> *To:* Franck, Matthew J; conlawprof at lists.ucla.edu
> *Subject:* RE: RE: Justice Scalia and First Things
> Re Matthew's message below:  Would Matt be less surprised (or even, 
> possibly, alarmed) if Scalia had never heard of, say, Ted Lowi, Robert 
> Dahl, David Mayhew, or other leading political scientists?  (I suppose 
> another way of asking this question is why we consider it tolerable 
> for justices to cite Madison and DeTocqueville as if they have the 
> slightest relevance to American society and government in 2006.)  
> Ditto if Scalia, the self-professed originalist (at least on Mondays, 
> Wednesdays, and Fridays, were ignorant of, say, Gordon Wood, Jack 
> Rakove (on the Founding period) or Eric McKitrick or Eric Foner on 
> Reconstruction?  How parochial do we allow judges (and, for that 
> matter, law professors) to be and still take them seriously when they 
> make assertions about theories of language, the operation of American 
> political institutions, or the historical context of the Founding or
> Matt, of course, is a distinguished political scientist who is 
> decidedly non-parochial himself.  So the question is whether his 
> seeming embrace of Scalia's proud ignorance of John Searle is related 
> simply to the perception of the likely contribution that philosophers 
> of linguistics have to make to debates about textualism and original
> On the point about legal positivism, I requote from Scalia himself:  
> "the positive law adopted by the American people and entrusted to the 
> enforcement of their courts...."  The most basic divided between legal 
> positivism and natural lawyers, as I understand it, is whether 
> morality is a necessary defining condition for regarding something as
> Legal positivists, whatever their differences, all say no.  Scalia 
> says no.  Therefore I put him in the camp of legal positivists.  I'm 
> not sure why Matt disbelieves in my own self-description as a legal
> I believe, for example, that slavery was an entrenched part of 
> American constitutional law.  I think that Lincoln probably went too 
> far when he said that a legislator was under a duty to vote for the 
> Fugitive Slave Law (yes, he really did say that), but I think we are 
> whistling past the cemetary to regard Dred Scott as an obvious 
> overreach with regard to what the Constitution "really meant" circa 
> 1857.  For me that is good reason to support disdaining the 
> Constitution and even, for some, trying to overthrow it (as we overthrew
the British Constitution in 1776-83).
> But at no point do I argue that because slavery was horrendously 
> immoral, it was not constitutional and subject to wide varitieties of 
> legal protection.  Does Matt disagree.
> I recognize that there is a strain even within natural law thinking, 
> ably developed by Robbie George in Making Men Moral, of what might be 
> labeled "prudentialism," whereby one tolerates immoral laws on the 
> grounds that the society isn't yet "ready" for the full transition to 
> a full-scale moral order.  But I see nothing in Scalia's analysis that 
> links him to this tradition (as by saying, e.g., that "the time isn't 
> right to declare that fetuses are affirmatively protected by the 
> Fourteenth Amendment, but perhaps the Court will be able to move to 
> the (theoretically correct) understanding of the Constitution in 25 
> years or so").
> sandy
> nck, Matthew J [mailto:mfranck at RADFORD.EDU]
> *Sent:* Wed 3/8/2006 4:25 PM
> *To:* Sanford Levinson; conlawprof at lists.ucla.edu
> *Subject:* RE: RE: Justice Scalia and First Things
> I'll bite.  First, I am neither surprised nor the least bit alarmed 
> that Scalia has never heard of John Searle.  I have heard of Searle, 
> but "heard of him" is about all I can say, and I speak as the spouse 
> of a communication scholar.  I know I have never read a book by him, 
> and if I have read an article, it was not memorable.  This is perhaps 
> a confession of a terrible intellectual deficiency on my part, but I 
> cannot even now, after reading Sandy's tribute to him, speak of a felt 
> need to go out and read John Searle.  I am sure he would say the same of
> More generally, I think the admission Sandy finds so shocking in 
> Scalia was actually kind of refreshing.  Maybe Scalia now intends to 
> read John Searle, but somehow I doubt it.  And if he thinks that the 
> last century or so of academic philosophy has not had a healthy effect 
> on the study and practice of the law, I would have to say that I have 
> much the same sense of things.  Perhaps John Searle could persuade me 
> otherwise; perhaps Sandy could persuade me that he could.  But while I 
> am open to the possibility, I am skeptical.
> As for Scalia's crack that Searle probably hasn't heard of him either, 
> this is no doubt a joke on several levels.  A little ironic (pretense
> at) self-deprecation, with a dash of a hint that academic philosophers 
> have their heads too much in some other place to notice someone so 
> "ordinary" yet so important as a Supreme Court justice.  Ha!  It got a 
> chuckle out of me, anyway.
> But a final point brings me to something I think I can claim to know a 
> little something about.  Why, Sandy, do you think that because Scalia 
> refuses to bring any beliefs he might hold about natural law to bear 
> on his constitutional decision-making, he must therefore be a legal 
> positivist?  Isn't that a fairly evident non sequitur?
> Why, for that matter, do you think you are yourself a positivist?  I 
> have heard and seen a great many people talk the talk of being legal 
> positivists, but, to adapt an old saying, there aren't any in foxholes.
> I will do you the honor of saying that I do not believe you are a 
> positivist.  Why do you think you are?
> Matt
> ***************************
> Matthew J. Franck
> Professor and Chairman
> Department of Political Science
> Radford University
> P.O. Box 6945
> Radford, VA 24142-6945
> phone 540-831-5854
> fax 540-831-6075
> e-mail mfranck at radford.edu <mailto:mfranck at radford.edu> 
> www.radford.edu/~mfranck
> </exchweb/bin/redir.asp?URL=http://www.radford.edu/~mfranck>**********
> *****************
> ----------------------------------------------------------------------
> --
> *From:* conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Sanford 
> Levinson
> *Sent:* Wednesday, March 08, 2006 2:42 PM
> *To:* conlawprof at lists.ucla.edu
> *Subject:* RE: RE: Justice Scalia and First Things
> I strongly recommend an exchange in the letters-to-the-editor column 
> in Feb. 2006 First Things, by three respondents to a review that 
> Justice Scalia had written of Steve Smith's recent book.  John B. 
> Allen offers an extremely sophisticated philosophical critique of 
> Scalia's theory of language (even though he is generally sympathetic 
> to Scalia's judicial politics), which draws the following comment from 
> Scalia:  "I . . . have never even heard of John Searle (as he has not, 
> I suppose, of me)."  I confess to being surprised that Scalia, who 
> professes to be a "textualist," would never even have heard of the 
> leading American philosopher of speech acts, given that he publishes 
> widely in such fora as the New York Review of Books.  Or, if it is 
> just too silly to imagine that a conservative would read the NYRB, I 
> would have thought that some philosopher friend of Scalia, knowing 
> that he is interested in the properties of textualism and original 
> meaning, might have told him, "There's this philosopher at Berkeley 
> who is the leading writer on such subjects, and you might read him 
> before, say, you give the Tanner lectures at Princeton, where 
> audiences might expect a certain level of intellectual sophistication 
> when opining on the nature of speech."  I could understand Scalia's 
> professing ignorance about, say, Saul Kripke or Donald Davidson, but 
> his ignorance of Searle says something interesting, at least to me, 
> about the huge chasm between even those judges who come out of the legal
academy and the rest of the university.
> Incidentally, Scalia's parenthetical itself raises interesting 
> interpretive questions, since it is inconceivable that Professor 
> Searle "has not [heard] of [Scalia]."  Scalia sharply rejects any 
> notions of "utterer's intent" as against the "public meaning" 
> available to an audience.  But Scalia can't really believe that Searle 
> has not heard of him.  Even if Scalia were unusually modest, it would 
> still be foolish beyond belief (literally) if Scalia thought that 
> Searle was so ignorant (especially after being informed that Searle is 
> extremely interested in theories of language).  So what, exactly, is 
> he intending to convey by the parenthetical, and how, exactly, would we
figure that out?
> The other two respondents take Scalia to task for not reading "persons" 
> to protect fetuses (and therefore, as a constitutional matter, to 
> prohibit states from allowing abortion).  Although he indicates that 
> he believes that states have a constitutional right to do so, he 
> reveals himself, once more, to be a legal positivist, distinguishing 
> very sharply between natural law and "the positive law adopted by the 
> American people and entrusted to the enforcement of their courts...."  
> I do not mean this as a criticism of Justice Scalia, being a 
> positivist myself.  But it raises once again what is the operational 
> importance of being a "Catholic justice."  Though, recall, Scalia has 
> written, in First Things, that he would feel compelled to resign if 
> the Church ever comes out four-square against capital punishment and 
> requires absolute non-collaboration with the practice.  (Presumably, 
> upholding a state's right, arguendo, to tolerate the murder of an 
> innocent does not count as sufficient collaboration.)
> sandy
> ----------------------------------------------------------------------
> --
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Douglas E. Edlin
Assistant Professor
Department of Political Science
Dickinson College
P.O. Box 1773
Carlisle, Pennsylvania 17013

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